History not on the side of death penalty repeal in Nebraska
The NET News documentary, available for viewing online.
This week the Nebraska State Legislature considers a bill to repeal the use of capital punishment. During our research for the NET News documentary “…until he is dead: A History of Nebraska’s Death Penalty” we reviewed dozens of attempts by lawmakers to end the practice, all unsuccessful.
Below is a decade by decade review of some of the highlights of those debates in the last century, as well as efforts to expand the types of crimes worthy of execution by the state.
1900’s: Death to Kidnappers!
Since becoming a state, Nebraska law not only specified which crimes deserved the death penalty, but the method of execution. State lawmakers, tired of botched hangings by county sheriffs and the ugly spectacle of public executions, opened the new century by modernizing its method. Lawmakers gave the warden of the state penitentiary sole responsibility for carrying out executions. Gottlieb Niegenfind was the first and news reports indicate everything went according to plan.
There was little talk in the Capitol of ending the death penalty. Some states, including neighbors Kansas and Colorado, repealed capital punishment but were debating the merits of returning to state-sponsored executions.
Bills introduced in Nebraska attempted to add, or at least specify, crimes worthy of a death sentence. Train robbery and kidnapping were both considered candidates for that list. (At the time the Legislature still consisted of two chambers, the House and Senate.)
1901 capital punishment law in Nebraska
Big money kidnappings became a cause for politicians after a sensational Nebraska case caught the attention of the entire nation. In 1900 the teenaged son of a wealthy Omaha couple was snatched off the street. His father quickly paid the $25,000 ransom and his son was returned.
State lawmakers responded by specifying kidnappers who demanded money would face a death sentence. (Kidnappings of those who didn’t have the means to pay a ransom were apparently considered lesser crimes.) Sen. Frank T. Ransom, the Omaha lawyer who wrote the bill, determined existing law was “regarded as lame and good authorities question whether… a long conviction would be possible.”
One unidentified “prominent member of the Senate” quoted in the McCook Tribune stated “to restore capital punishment for any crime less than murder in the first degree would be a distinct step backward.”
The law passed. These days kidnapping would be including among many ‘aggravating circumstances’ considered when the courts determined a sentence in a capital murder case.
1910s: The Problem with Pardons
Can you be against the executions but in favor of the electric chair? Apparently a handful of Nebraska legislators felt they could hold both opinions on a single day.
An editorial cartoon from the 1913 Omaha Bee shows capital punishment vying for the attention of a state legislator along with two other issues of the day, giving women the right to vote and legalizing baseball games on Sundays.
The electric chair had become the method of choice in most states where capital punishment was legal. Nebraska was one of the few left that relied solely on hanging, and State Rep. August Reuter of Otoe County felt it was time to modernize its execution chamber. At the same time Rep. John McKissick of Gage County sought to end use of the death penalty in most cases. Both bills were heard on the same day. According to the correspondent for the Omaha Bee, “the house went on record as being opposed to capital punishment and then turned around and recommended for passage a bill to electrocute condemned prisoners instead of hanging them.”
Eventually both the House and Senate kept capital punishment as the law of the land and approved the electric chair.
An editorial in the Lincoln State Journal approved. The editor wrote: “The substitution of the electric chair as the instrument of death will put Nebraska in the company of perhaps a dozen states that have accepted what is considered on all sides as a more humane method of inflicting the death penalty.”
There were still regular attempts to repeal capital punishment, but the controversial and apparently too frequent use of pardons for criminals by Nebraska’s governors gave supporters of capital punishment ammunition against their opponents.
Starting in 1893 the state’s governors held the power to parole any prisoner who had at least served the minimum sentence permitted by the court. Those committing murder could be sprung from jail after 25 years. With a commutation, a prisoner could be set free if the governor, and the governor alone, felt a sentence had been unfair. Each year governors wielded the authority more and more freely. So loose were sentences that a study completed by the warden of the state penitentiary revealed “a life sentence has meant only about seven or eight years and the longest term served by any man was only 15 years.”
State legislators created the State Prison Board in 1911 to advise the governor. That seemed to do little to reduce the number of prisoners being released early, and at times without adequate review. Exclusive pardon power was taken from the governor in 1920 and decisions were given to a three-member Board of Pardons made up of the governor, attorney general and secretary of state.
1920s: Old Time Religion and New Era Women
Grass roots opposition to the death penalty was a rarity in Nebraska so it was news when the Women’s Christian Temperance Union joined the fight. The WCTU, energized by its victory over liquor in America and the arrival of Prohibition, making liquor illegal, turned its attention to other causes in its moral crusade. “We are also opposed to prize fights, to lynching, to anarchy and to capital punishment,” read the national organization’s annual report.
In January of 1920 a mass meeting was held in Omaha to create an organization to muster support and circulate petitions. The initiative was not directed at the Legislature but at delegates to the state’s constitutional convention. Nebraska’s constitution had not been updated since 1893 and it was viewed as an opportunity to repeal the death penalty. The campaign had little impact. Shortly after delegates convened, the North Platte Tribune reported they had “apparently taken a definite stand to refuse to knock out the death penalty from the constitution.”
Allen Grammer and Alson Cole were the first men executed in Nebraska's electric chair. Grammer's wife, right, maintained her husband did not kill her mother and pleaded for his life. (Image: Omaha World Herald)
In December Nebraska used its electric chair for the first time. Two men involved in the same crime were executed within 20 minutes of each other. Alson Cole and Allen Grammer of Howard County conspired to murder Grammer’s mother-in-law for her inheritance. Three years of appeals, stays of executions and legal maneuvering outraged death penalty supporters demanding justice be carried out.
The Temperance Union didn’t give up, shifting its pressure to state legislators. “I think murder is murder, whether committed by the state in punishing a crime or by a person in anger or revenge,” said Mrs. C.W. Hayes, state superintendent of moral education for the WCTU, according to the Dakota County Herald. The group sent out at least 100 petitions for signatures.
Gov. Samuel McKelvie supported the bill and included a recommendation that once the court issued a death sentence it could not be altered. The bill failed within a month. By 1923 a similar bill did not even make it out of committee.
While he opposed the death penalty, Gov. McKelvie still carried out the law of the State of Nebraska, signing the death warrants for three men during his term. More executions were carried out in the 1920s than in any other year after the state took responsibility for carrying out the sentence.
1930s and 1940s: The Quiet Decades
By the beginning of the 1930s Nebraska’s death row was empty. Not only would there not be a single execution for the next 13 years, there is no record of a single murder case ending with a death sentence in the state during the entire decade. It’s a remarkable fact, considering across America this was the era of bootleggers defying Prohibition, gangsters like John Dillinger and Bonnie and Clyde, and an epidemic of bank robberies born of the desperate times of the Depression.
1945: MacAvoy & The Sanity Test
The case of Joseph MacAvoy unnerved the state in a couple of ways. He was convicted of raping and murdering a 16-year old girl in tiny Sutton, Neb. At a time when pride in the troops headed overseas was at a peak, it was a shock to learn the suspect was a military police officer stationed at the Harvard Air Base training facility.
After MacAvoy’s execution the warden of the state penitentiary told legislators it was time to review how the state determined if a person was insane prior to facing the electric chair. From the beginning Nebraska law prohibited the execution of those diagnosed as mentally incapable of understanding or controlling their own actions.
State law left the decision as to whether to conduct a sanity test up to the discretion of the person in charge of the prison. The Omaha World-Herald reported Warden Neil Olson testified that put “too much responsibility on one man.” Olson said he felt MacAvoy was sane and had “no feelings of remorse” about the execution, but felt the three-member Pardons Board should take over that responsibility.
The bill passed and the discussion foreshadowed what would become one of the most contentious policy issues for lawmakers, attorneys and judges.
(Photo Courtesy of Dept. of Correctional Services)
There was also little activity in the State Capitol related to the death penalty. Headlines about local government were dominated by responses to the economic crisis and the headaches of enforcing the national ban on liquor.
One of the few bills introduced during the 1930s reflected the times. Sen. Arthur Newman of Oakland introduced a bill that singled out bank robbery as an offense worthy of execution. Newman, not coincidentally, ran the bank in Oakland.
Discussion about the merits of capital punishment didn’t resume until 1949. By then World War II had ended and a handful of sensational murder cases made headlines and stirred public emotion again.
1950s: Reconsidering the process
Sen. Hugh Carson made yet another attempt to end the death penalty, but there was little popular sentiment to reduce the penalty for first-degree murder. Another senator, the fiery representative from Scottsbluff, Terry Carpenter, even proposed making a third violation of the state’s narcotic laws punishable by death or a life sentence. In 1955 Gov. Victor Anderson, after witnessing an ugly, three-day prison riot at the Nebraska State Penitentiary, told the press the uprising made him “a firm supporter” of capital punishment.
Two murder cases brought new issues about the legal system and capital punishment in the state. In 1954 Loyd Grandsinger, a Sioux Indian, had been sentenced to die for allegedly participating in the murder of a Nebraska state trooper in Cherry County. Grandsinger was released from prison after a federal judge determined the trial was unfair because his defense attorney had been incompetent. After a second trial the jury found Grandsinger innocent, sparing him the electric chair.
No one doubted the guilt of a second murderer, Stanley Nowicki. In 1956 he earned the death penalty for hacking his wife to death on a South Omaha sidewalk. Because his attorney failed to file his appeal paperwork on time Nowicki did not have the chance to challenge the verdict. The courts, and later the State Legislature, agreed a paperwork mistake shouldn’t result in an automatic death sentence. Nowicki’s sentence was changed to life and a change in law required all death sentences to be given a review by the state’s Supreme Court, even without an attorney filing the paperwork.
By the end of the decade some state senators reconsidered their stands on the value of the death penalty. Another attempt was made to have the punishment removed from state statute. Most notably, Sen. Carpenter, just a couple of years after suggesting repeat drug offenders deserved to die, sponsored his own bill replacing capital punishment with mandatory
life in prison.
Sen. Carpenter, according to the Omaha World-Herald, “argued that life imprisonment, forcing a murderer to live with his conscience, is a greater penalty than death.” A death penalty supporter, Sen. Don Thompson of McCook, replied that person “has no conscience to live with.” The vote was not close. Only three of 26 legislators voting supported ending the death penalty.
Charlie Starkweather's prison mug shot (Photo Courtesy of Dept. of Correctional Services)
Two years later Charles Starkweather and Caril Ann Fugate began a mass murder spree in Nebraska that left 11 people dead. It turned international attention on the state and its justice system. The execution of Starkweather in 1959 became an emblematic case for capital punishment. It would also be the only use of the electric chair in the state for another three decades.
1960s: An Advocate Governor
Rarely has a Nebraska Governor used the office to campaign against the death penalty. Even while the state’s chief executives rarely pushed to advance executions during their terms of office, most made it clear they supported and would not interfere with the legal process when capital cases came before them for a final review.
In 1903 Gov. Erza P. Savage told the Legislature, “in our day of boastful enlightenment we find employed instruments which in the darkest ages represented the most vicious form of punishment, human savagery and barbarism.”
Savage took the unusual step of issuing a six month stay of execution for William Rhea, age 19, sentenced to hang for murdering a saloonkeeper during a drunken robbery attempt. Three older men involved in the case all blamed Rhea and avoided the death sentence. Public opinion was divided. One petition drive asked he be spared while another asked justice be done at the gallows. The Legislature failed to act and the state executed Rhea later that year on the orders of the next governor, William Mickey.
It would be 60 years before another chief executive took action to stop capital punishment. Frank Morrison, a Democrat from McCook, started his political career as a county prosecutor. He became governor in 1960 and held the office for three terms.
Gov. Frank Morrison (Photo Courtesy of State of Nebraska)
Initially he took no strong stand. Early in his first term Morrison told the Omaha World-Herald his mind “hasn’t been irrevocably made up” about abolishing the death penalty but added if the Legislature passed such a bill, he wouldn’t veto it. “There is no existing evidence available that capital punishment reduces the crime rate or protects society,” Morrison said, adding “at least none has been called to my attention.”
In 1965, Morrison’s second term in office, he threw his full support behind a bill to end the death penalty sponsored by Sen. John Knight of Lincoln. A similar bill had not even made it out of committee two years earlier. This time Morrison testified before the Judiciary Committee, calling capital punishment “nothing more than legalized murder.”
The leader of the Police Officers Association of Nebraska, Robert Guenzel, was outraged by Morrison’s statements, telling the senators “there are certain psychotics in crime who are not wanted by society. Execution is the proper way to rid the state of these individuals.”
Even with the support of Gov. Morrison, there was no support for ending the death penalty at a time when crime rates were on the rise in the state’s largest cities. The Judiciary Committee killed the bill with a 5-1 vote.
The following year Sen. Knight gave up his fight and didn’t even submit a death penalty bill. He told the World Herald “I’d feel like I’d be batting my head against the wall.”
1970s The Veto
Historic rulings by the United States Supreme Court did more than any act at the State Capitol to dictate law and delay executions during the 1970s. In some of the 39 states where the death penalty was in use at the time (most notably in the south) attorneys successfully argued capital punishment was not being applied equally and fairly. In 1972 the Supreme Court issued a ruling in Furman v. Georgia that temporarily invalided the death penalty nationwide.
Nebraska's electric chair (Photo Courtesy of Dept. of Correctional Services)
To retain capital punishment state laws had to be rewritten to include guidelines for judges and juries specifying what made a specific crime worth of a death sentence. The Nebraska Legislature acted quickly and in 1973 it overwhelmingly passed LB 268, which established, according to the Legislative Research Division, “mitigating and aggravating circumstances to be weighed in determining whether a murder merits the death penalty.” A second bill provided for a sentencing trial in capital murder cases. Once someone was found guilty, a second hearing would be held to review whether the acts were sufficient to rise to the level of a death sentence. Four years later Nebraska law added a requirement to compare death penalty cases to see if offenses and punishments were comparable.
If the changes in law were considered to be legal reforms, they did not quiet those who felt the state had no role in taking the life of a person. Sen. Ernie Chambers had made eliminating the death penalty one of his highest priorities since he was elected to the Legislature to represent his North Omaha district in 1970.
His efforts were mostly futile until 1979. It would be the closest the state ever came to ending capital punishment.
Several very influential senators, all moderate Republicans, reevaluated their position on the issue. Chambers' bill would replace the sentence in capital murder cases with a mandatory prison term of 30 years to life.
When the bill reached the full Legislature for debate ““the atmosphere… was remarkable because of the quiet and the attention given to senators who spoke,” according to the Omaha World-Herald.
Sen. Loran Schmit, after 11 years of firm opposition, told the hushed chamber “I do not make this decision lightly,” as he announced he would support the repeal. Sen. Jerome Warner noted the new prison being built in Lincoln included a death chamber, which he called “a monument to the past” and said he had decided to change his stand on the issue as well.
Supporters of the death penalty, including Sen. Chris Beutler, spoke of “the human apprehension of death” as a reason having a death sentence available prevented violent crime.
On the first round of voting the bill passed 25-17, but once it reached Gov. Charles Thone it was vetoed immediately. There were not enough votes to override the veto.
1980s: Holding Steady
Nebraska had never executed or even issued a death sentence to a minor, but there had been cases in which it might have been considered. Caril Ann Fugate, the 14-year-old girlfriend went on trial for murder along with her boyfriend Charles Starkweather for their killing spree. Starkweather, five years older than his companion, got the electric chair while Fugate was spared.
Nonetheless, there was a consensus in legal circles juveniles should not be executed and in 1982 the Legislature agreed, passing a law excluding offenders under 18 from the risk of a death sentence. (In 1998, in compliance with a U.S. Supreme Court ruling, Nebraska also prohibited the execution of mentally retarded individuals involved in capital crimes.)
Sen. Elroy Hefner made legislative history in 1983 by making the first effort to end the use of the electric chair and replacing it with lethal injection, a new method gaining support in death penalty states. Hefner contended it “would be more humane.” The bill never made it out of committee.
1990s: Taking Time to Study
Harold LaMont Otey (Photo Courtesy of Dept. of Correctional Services)
In 1994 the State of Nebraska resumed executions for the first time in nearly 30 years. Harold Otey died in the electric chair after exhausting his appeal process. Convicted murderers John Joubert and Robert Williams would follow him over the next three years.
The introduction of a bill to abolish the death penalty became an annual affair in the statehouse. During every legislative session between 1976 and 2008 Sen. Chambers introduced a bill calling for an end to executions. They would not take hold and on most occasions they did not get to a vote by the full Legislature.
Two initiatives in the 1990s brought the issue back to the forefront.
When Sen. Chambers introduced LB 327 to end the death penalty in 1992 it arrived with 25 co-sponsors, surpassing early support for the similar bill passed (but vetoed) 13 years earlier. After the Judiciary Committee refused to advance the bill for a floor vote, a majority of senators rallied to have it debated.
Politically, the timing proved to be bad to maintain support for the bill. Larry Koch, in his book “The Death of the American Death Penalty” wrote the horrific crimes that put Otey, Joubert and Williams on death row loomed large in newspapers and television news at the time. Efforts to proceed with their long delayed executions were gaining momentum and the families of their victims were lobbying state senators.
It only got worse for supporters. Two years earlier Sen. Chambers wrote a letter to Harold Otey on death row, hinting the killer might not have to spend the rest of his life in prison if the death penalty were repealed. “The ‘without parole’ won’t mean much in reality,” Chambers wrote, “because the Pardons Board always will have the power to reduce any sentence.” After the letter was made public early supporters abandoned the bill.
If the state would not end capital punishment, opponents of the practice asked if the state would at least be willing to hold off on any executions until there was a study of how fairly it was applied and its costs. The American Bar Association made that request of all death penalty states. Nebraska state senators would not vote to stall executions, but they did agree to fund a study.
The research completed by University of Iowa death penalty researcher David Baldus showed there was little evidence of racial discrimination at the time, but defendants from the state’s population centers were more likely to face a capital murder charge than those in rural areas. Also, cases where the victim was poor were less likely to see the defendant get the death penalty.
Few state senators felt the research provided any evidence the death penalty needed to be reconsidered.
2000 to Present: Lethal Injection
Excerpts from Nebraska v. Mata 2009
The biggest change in death penalty law did not originate in the State Legislature, but from the Nebraska Supreme Court. In a landmark, forcefully worded opinion in the case of Mata v. Nebraska the justices ruled the use of the electric chair violated the state’s constitutional ban on “cruel and unusual punishment.”
In order to maintain the death penalty the Legislature quickly changed the state’s method to lethal injection. That change opened up a new battlefield in the appeals courts for everyone facing a death sentence in the state.
Since 2000 eight men were added to the population of death row in Nebraska, but not a single execution was carried out. A variety of legal challenges accomplished what death penalty opponents promoted unsuccessfully in the Legislature: blocking, if not actually ending, the death penalty.
Sen. Chambers had one other near miss for his annual capital punishment bill in 2007. Speaker of the Legislature Mike Flood, a death penalty advocate, admitted he was caught off guard by the vigorous floor debate. Ultimately the bill failed before the full Legislature by a one-vote margin.
Because Nebraskans approved limiting the terms of its state senators, Ernie Chambers introduced what some called his last death penalty bill in 2008. It also failed. In his final speech on the matter that year he told fellow senators he hoped “that someday people in the Legislature would reach the point where they realize, as those in other industrialized countries have, that the death penalty does not advance the cause of civilization.”
After a four year absence, Chambers was returned to the Legislature by his North Omaha district and immediately introduced the bill up for consideration this year.Source: netnebraska.org